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[1997] UKSSCSC CI_14532_1996 (25 November 1997)

R(I) 3/02

Mr. E. Jacobs CI/14532/1996

25.11.97

Prescribed disease A11 (vibration white finger) – whether disability for assessment purposes limited to blanching

The claimant was assessed by an Adjudicating Medical Authority as having a 7% disablement as a result of Prescribed Disease No. A11. He applied for a review on the grounds of unforeseen aggravation and he came before another Adjudicating Medical Authority. The assessment was increased to 10%. The claimant appealed against that assessment to a tribunal, but the tribunal confirmed the assessment. The claimant appealed to the Commissioner.

Held, allowing the appeal, that:

a tribunal dealing with an appeal relating to unforeseen aggravation has jurisdiction to deal with the loss of faculty;

there is no error of law merely on account of the lack of reference to loss of faculty in a tribunal's decision, but in the circumstances of this case there were uncertainties which the tribunal should have resolved;

the loss of faculty in the case of this prescribed disease as defined in Schedule 1 to the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 is that which results from the medical condition known as vibration white finger;

references to blanching in the definition do not limit the scope of the disabilities which may be taken into account, so the sensory consequences of the disease may be included;

furthermore the Industrial Injuries Advisory Council's Report on Vibration White Finger shows that the definition only restricts the cases which are to be subject to an assessment of disability for disablement benefit, and not the disabilities which are to be taken into account.

[Note: the Commissioner also gives guidance on the relevance and evidential value of classifications under the Taylor Pelmear Scale and the Stockholm Scales.]

DECISION OF THE SOCIAL SECURITY COMMISSIONER

My decision is as follows:

.1 The decision of the Liverpool Medical Appeal Tribunal held on 27 November 1995 is erroneous in point of law.

.2 Accordingly I set it aside and refer the case to a differently constituted Medical Appeal Tribunal for determination.

.3 I direct the Medical Appeal Tribunal which rehears this case to conduct a complete rehearing.

The claimant was assessed by an Adjudicating Medical Authority as having a 7% disablement as a result of Prescribed Disease No. A11. He applied for a review on the grounds of unforeseen aggravation and he came before another Adjudicating Medical Authority. The assessment was increased to 10%. The claimant appealed against that assessment to a tribunal, but the tribunal confirmed the assessment. The claimant now appeals to the Commissioner, leave having been granted by a Commissioner. The representative of the Secretary of State supports the appeal.

The tribunal's decision is erroneous in law in a number of respects.

The tribunal's failure to identify a loss of faculty

The Medical Appeal Tribunal did not complete that part of the standard decision form which provides for the identification of the loss of faculty. The chairman may have ignored loss of faculty because of the design of the form which places loss of faculty before grounds for review, although the latter is logically the first question to answer on an unforeseen aggravation appeal.

This raises the question whether the tribunal's decision was erroneous in law for not identifying the loss of faculty. Before coming to the particular facts of this case, it is necessary first to consider whether the identification of a loss of faculty is within the jurisdiction of a tribunal dealing with an appeal relating to unforeseen aggravation.

The review with which the tribunal was concerned was of an "assessment of the extent of the disablement resulting from the relevant loss of faculty": see section 47(4) of the Social Security Administration Act 1992. This suggests that only disablement is within the tribunal's jurisdiction.

There may appear to be some support for this view in section 45(1) of the Administration Act which defines two separate disablement questions, namely, whether there was a loss of faculty and, if so, at what degree and for what period the resulting disablement should be assessed. However, the definition of two separate "disablement questions" serves two functions. First, it allows the definition to cover both Industrial Injuries Benefit and Severe Disablement Allowance. Second, it allows the definition to cater for the possibility that there is no loss of faculty at all. It is significant that both questions are called disablement questions, although one of them is concerned only with loss of faculty. The definition of loss of faculty and disablement as separate questions is, therefore, adequately explained as being for structural purposes only.

The tribunal is concerned with a review. The review may be carried out if "since the making of the assessment there has been an unforeseen aggravation of the results of the relevant injury": see section 47(4). By virtue of regulation 44(2) of the Social Security (Adjudication) Regulations 1995, the reference to "injury" includes a reference to "disease", so a review is permissible where there has been an unforeseen aggravation of the results of the relevant disease. The legislation sets out a chain which leads from (i) a disease (ii) as a result of which the claimant suffers a loss of faculty (iii) which causes the claimant to incur disabilities (iv) to an overall disablement. "Results" is a general word which is not one of the terms of art which the legislation applies at stages (ii) to (iv) and which is wide enough to cover an aggravation at any of stages (ii) to (iv). The "results of the relevant disease" are words that are wide enough to cover an additional loss of faculty.

My conclusion is that a tribunal dealing with an appeal relating to unforeseen aggravation has jurisdiction to deal with the loss of faculty. This is confirmed by an analysis of section 47. Section 47(5) and (6) extends the scope of section 47(4) to cover cases where the decision to be reviewed was that the claimant had suffered no loss of faculty or that the claimant, having initially had a loss of faculty, no longer had any such loss. There is no specific provision to cover the case where a further loss of faculty arises in addition to the loss of faculty identified when the existing assessment was made. It has never been decided whether an additional loss of faculty may be taken into account on an unforeseen aggravation review, although in Commissioner's Decision R(I) 18/62, paragraph 16 the Commissioner said:

"I assume in favour of the claimant (without deciding) that 'unforeseen aggravation of the results ...' includes not merely an unforeseen worsening of the original results found by the assessing board (e.g., in this case by the claimant's thumb becoming more stiff) but also the addition of further results which make his condition more serious (e.g., by the tip of his thumb being cut off)."

It would be anomalous to allow a review on the basis that a loss of faculty existed where none existed before, but not on the basis that an additional loss of faculty had arisen. The only provision under which this can be achieved is section 47(4). So, that subsection must confer jurisdiction on a tribunal to identify at least an additional loss of faculty.

Given that the tribunal has jurisdiction to deal with a loss of faculty, the question arises whether there is an error of law if it does not do so.

There is no error of law merely on account of the lack of any reference to loss of faculty in a tribunal's decision. (It is unlikely that an Adjudicating Medical Authority would omit a mention of loss of faculty in view of the structure of the standard form which is completed.) This conclusion may be reached in two ways. First, a tribunal does not have to determine any point which was not in issue before it, either because it was expressly raised or because it arose on the evidence before the tribunal: see the Tribunal of Commissioners' Decision R(M) 1/83, paragraphs 11, 15 and 16. Second, an Adjudicating Medical Authority and a Medical Appeal Tribunal dealing with an alleged case of unforeseen aggravation must do nothing which is inconsistent with the existing assessment: see Commissioner's Decision CI/437/1992. This means that as a minimum they must accept the loss of faculty used in reaching that assessment. In the absence of any indication to the contrary it may generally be assumed that a Medical Appeal Tribunal has adopted this approach.

In the circumstances of this case, however, an issue arose in relation to loss of faculty which the tribunal should have resolved. The original Adjudicating Medical Authority identified as the relevant loss of faculty "Vibration White Finger PDA11" (page 19). The reviewing Adjudicating Medical Authority identified as the relevant loss of faculty "Impaired sensation and blanching of fingers" (page 40). It is not for me to say whether the latter is narrower than the former, although it may be so. The former, of course, is a disease and not strictly a loss of faculty. It can only mean the loss of faculty which inevitably results from the Prescribed Disease.

It is not clear whether or not the reviewing Authority, and therefore the tribunal (a) substituted a narrower loss of faculty for that identified by the previous Authority or (b) expressed in different words the same loss of faculty as that on which the existing assessment was based or (c) extended the scope of the original loss of faculty. The Medical Appeal Tribunal should have resolved these uncertainties by making clear (a) that it accepted, in accordance with CI/437/1992, the loss of faculty on which the existing assessment was based and (b) what additional loss of faculty, if any, was being identified for use on the review. In failing to do so, its decision was erroneous in law.

The disabilities considered by the tribunal

The tribunal's findings and reasons show that they were looking at the claimant's sensory disabilities. This raises the question of whether the tribunal was entitled to do so.

The assessment of disablement is governed by paragraph 1 of Schedule 6 to the Social Security Contributions and Benefits Act 1992. It provides that

"the extent of disablement shall be assessed, by reference to the disabilities incurred by the claimant as a result of the relevant loss of faculty in accordance with the following general principles––

(a) ..., the disabilities to be taken into account shall be all disabilities so incurred (whether or not involving loss of earning power or additional expense) to which a claimant may be expected, having regard to his physical and mental condition at the date of the assessment, to be subject during the period taken into account by the assessment as compared with a person of the same age and sex whose physical and mental condition is normal;

(c) the assessment shall be made without reference to the particular circumstances of the claimant other than age, sex, and physical and mental condition".

As mentioned in paragraph 8 above, the relevant loss of faculty is the loss of faculty resulting from the Prescribed Disease. This creates a difficulty on account of the definition of Prescribed Disease No. A11. That definition is set out in Appendix 1. The Disease is defined solely in terms of blanching. There is no mention of sensory changes. Taken at face value the terms of the definition might suggest that the only loss of faculty would be the cosmetic one of the blanching. However, the blanching only occurs because of the interruption of the blood supply, so the loss of faculty could readily be extended to cover that also. The more difficult question is whether it can extended further so as to include the sensory aspects of the claimant's condition.

My conclusion is that the loss of faculty in the case of this Prescribed Disease is that which results from the medical condition known as Vibration White Finger. It is not necessarily limited to the loss of faculty which arises from the blanching of the fingers. The references to blanching in the definition are explained by the need to provide a restrictive definition of the cases covered by the Prescribed Disease. They do not limit the scope of the disabilities which may be taken into account in those cases which fall within the definition. There was, therefore, no error of law in the tribunal's decision on account of the consideration of the sensory consequences of the disease.

The Industrial Injuries Advisory Council's Report on Vibration White Finger

In interpreting the legislation relating to Vibration White Finger, it is permissible to look at the Report of the Industrial Injuries Advisory Council which led to the introduction of this Prescribed Disease. The Council's recommendation was contained in its 1981 Report on Vibration White Finger (Cmnd. 8350).

The Report shows that the Council was aware that its proposed definition of Vibration White Finger (on which the current definition is based) was narrower than the scope of the medical condition bearing the same name and that the symptoms included sensory distribution as well as blanching.

The Report also shows that the proposed definition took into account the practicalities of diagnosing the condition at varying stages of severity.

The definition of Vibration White Finger must not be considered in isolation. It is necessary to consider its operation in the overall structure of the legislation. In particular it is necessary to consider the operation of regulation 11 of the Social Security (General Benefit) Regulations 1982 as applied to Prescribed Diseases by regulation 12 of the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985. Regulation 11 deals with the case where a claimant's disablement is made worse because of the operation of some other effective cause. If the full range of the disablement resulting from Vibration White Finger as medically defined could not be taken into account under the basic principles set out in paragraph 15 above, it is necessary to consider whether the increased disablement resulting from the sensory symptoms (as opposed to the blanching) could be taken into account under regulation 11. The structure of regulation 11 presupposes that there are two separate causes of a claimant's disablement. To apply it in circumstances where the legal definition of a disease is narrower than the medical definition would mean treating a single condition as if it were two. This artificial result can only be avoided by ignoring the sensory symptoms altogether or by bringing them within the disablement caused by the loss of faculty which results from the disease.

The best sense that can be made of the definition of Vibration White Finger both in isolation and in the context of the operation of the legislation as a whole is to treat the definition as only restricting those cases of Vibration White Finger which are to be subject to an assessment of disablement for Disablement Benefit purposes. Once a case falls within the definition, the loss of faculty which causes the claimant's disabilities is to be identified by reference to the medical condition known as Vibration White Finger and not by reference to the restrictive legal definition.

Although it is not relevant to the interpretation of the current legislation, I have also looked at the Council's 1995 Report on Hand Arm Vibration Syndrome (Vascular and Neurological Components Involving the Fingers and Thumb) (Cm. 2844). The Report recommends including neurological effects of the condition in the legal definition. The importance of this appears from the comment (at paragraph 17 of the Report) that an affected individual could exhibit the neurological symptoms without the vascular symptoms and vice versa. There is nothing in the report to cast any doubt on my interpretation of the current legislation.

The title of the 1995 Report shows a change in terminology. Vibration White Finger is seen as part of a wider syndrome affecting the upper limb. Care needs to be taken when dealing with expert reports which refer to the Syndrome as they may relate in part to matters outside the scope of Vibration White Finger, although those additional matters may fall to be taken into account under regulation 11 of the General Benefit Regulations.

The lack of comment on the expert evidence before the tribunal

The claimant's grounds of appeal argue that the tribunal's decision was erroneous in law for failing to refer to two expert reports submitted by the claimant. The Secretary of State supports the claimant's grounds. I must look at those reports to see if there was anything in them which required the tribunal to refer to them in its reasons for decision.

Before doing so, I need to consider the standard Scales for the classification of Vibration White Finger.

The Taylor Pelmear Scale

The Taylor Pelmear Scale is set out in Appendix 2.

Its limitation so far as diagnosis is concerned is that the categorisation cannot necessarily be directly applied to the legislative definition of the Prescribed Disease. Any category from Stage 0 to Stage 2 is inconsistent with a diagnosis of this prescribed Disease as there is either no blanching or it occurs only in winter. Stages 3 and 4 involve blanching throughout the year, but that blanching is merely described as "extensive" without any indication of the phalanges or the number of digits affected.

Its limitations so far as the assessment of disablement is concerned are as follows. (a) It is worded in loose terms that leave scope for disagreement over the proper classification of a particular case. (b) It is entirely subjective in that it is related to the particular work, domestic or social activities which the claimant previously undertook or wished to undertake. Its terms are not directly related to the legal criteria by reference to which disablement must be assessed (see paragraph 15 above). (c) The placing of the claimant on the Scale depends upon the claimant's history and reported symptoms rather than on objective clinical signs or matters within the personal knowledge of the doctor concerned.

The Scale was referred to in the Industrial Injuries Advisory Council report on Vibration White Finger. The fact that it contains references to tingling and numbness shows that the Council was aware that the symptoms of the disease were not limited to episodic blanching.

The Stockholm Scales

The Stockholm Scales were designed to update the Taylor Pelmear Scale. They are set out in Appendix 3.

As with the Taylor Pelmear Scale, their limitation so far as diagnosis is concerned is that the categorisation cannot necessarily be directly applied to the legislative definition of the Prescribed Disease. Stages 0 and 1 of the Vascular Scale are inconsistent with a diagnosis of the Prescribed Disease. Stages 2, 3 and 4 might be consistent with such a diagnosis, but there is no reference in the Vascular Scale to seasonal variation.

So far as the assessment of disablement is concerned, the Scales are more useful than the Taylor Pelmear Scale in that the classification is based on symptoms rather than the effect of those symptoms on the claimant's activities.

However, there are still limitations to the usefulness of the Scales. (a) They are worded in loose terms that leave scope for disagreement over the proper classification of a particular case. (b) Although they are not subjective in the sense that the Taylor Pelmear classification is, the stages are not directly related to the legal criteria by reference to which disablement must be assessed. (c) The placing of the claimant on the Scale depends in part at least on the claimant's history and reported symptoms rather than on objective clinical signs or matters within the personal knowledge of the doctor concerned, although there is greater scope for the use of relatively objective tests in relation to the neurological component.

In view of the limitations of the usefulness of the Scales so far as the assessment of disablement is concerned, my conclusion is that a tribunal is unable to infer any useful information from the mere classification itself. There is no error of law if a tribunal, in dealing with an assessment of disablement, makes no reference to the classification. What is of value is any evidence from the expert report of the basis upon which the classification was made. In an appropriate case, the tribunal will need to deal with this in its reasons.

The expert reports

Against this background, I must look in more detail at the reports.

The first report was dated 5 August 1993 and the second was dated 22 August 1994. Both reports classify the claimant's condition on the Taylor Pelmear Scale and the Stockholm Scales. The first report classified the claimant as at Stage 3 on the Taylor Pelmear Scale and as 3R(2)/3L(4) and 2SN on the Stockholm Scales. The classification of the right hand as Stage 3 on the Stockholm Vascular Scale must be doubted as that stage applies where most fingers are affected, whereas the chart attached to the report shows blanching on only 2 fingers. The second report classified the claimant as at Stage 3, possibly Stage 4, on the Taylor Pelmear Scale and as 3/R(4) and 3/L(4) on the Stockholm Vascular Scale; no classification was made on the Stockholm Neurological Scale.

As I have said in paragraph 35 above, there is no error of law for failure to refer to these classifications. However, I must consider whether there was information in the reports which required comment by the tribunal.

The first report consists mainly of a report of the claimant's reported symptoms. The clinical examination excluded certain constitutional bases for the symptoms, identified abnormal two point discrimination in the left hand, and confirmed the history of episodic blanching by means of a rewarm test. The second report was by a different consultant. It was more detailed in its history and in setting out the tests undertaken. It concluded by suggesting that there had been an increase in the severity of the condition since the first report.

To a lay reader the reports confirm that the claimant has been properly diagnosed as falling within the legal definition of Vibration White Finger. This was not in issue before the Medical Appeal Tribunal. The reports also support, or perhaps even confirm, the claimant's evidence of the extent of the blanching. The reports are of less value on the sensory symptoms. The first report mentions abnormal two point discrimination, but does not explain what tests were carried out, while the second report makes no mention of any test of the claimant's reported sensory symptoms.

The tribunal's findings and reasons

The tribunal's manuscript decision recorded the following findings. The typed version is inaccurate in some respects.

"A cold challenge test showed patchy blanching on 2 fingers of rt hand. Less extension than in a control. Blanching in subject and control cleared in 20 seconds. 2 point discrimination test showed apparent gross impairment with points separated by 2 cm being said to be felt as one. However, trophic changes were absent. There was apparent difficulty in picking up small objects. We also noted early Dupytrens Contracture both hands."

It reasons were:

"Considered all the scheduled evidence. There were apparent changes but in the absence of trophic changes these in our opinion are attributable in some measure to exaggeration. We consider in all the circumstances that the present assessment are reasonable as in our opinion our findings are not consistent with the degree of disablement described in his evidence."

The tribunal obviously considered that the claimant was exaggerating his symptoms. This was a conclusion which the tribunal was entitled to reach. However, in view of the detailed tests which were explained in the second medical report, the tribunal should have made clear whether its conclusion was consistent or inconsistent with that report and, if inconsistent, why the tribunal preferred its own opinion. In particular the tribunal should have made clear what significance it attached to its (unspecified) control and how that compared in reliability to the detailed tests outlined in the second report.

The tribunal clearly discounted the claimant's evidence. If that evidence was not wholly accepted the question arises of the basis upon which the assessment of disablement was based. This should have been explained in the tribunal's reasons.

Dupuytrens Contracture

In addition to supporting the grounds put forward by the claimant, the Secretary of State submits to the Commissioner that the tribunal failed to consider whether the Dupuytrens Contracture referred to by the tribunal was another effective cause of the claimant's disablement. The tribunal recorded that it was recent. It would, therefore, have arisen after the Prescribed Diseases was contracted and could only be taken into account if disablement from the Prescribed Disease alone amounted to at least 11%: see regulation 11(4) of the General Benefit Regulations. That condition was not satisfied here, so the tribunal rightly ignored any additional effect which might arise from the Contracture. However, if the tribunal which rehears this case finds that the claimant's disablement from the Prescribed Disease is at least 11% any additional disablement resulting from this other cause must be taken into account.

Conclusion

The tribunal's decision is erroneous in law and must be set aside. There must, therefore, be a complete rehearing of this case before a differently constituted tribunal. As my jurisdiction is limited to issues of law, my decision is no indication of the likely outcome of the rehearing. The tribunal will decide afresh all issues of fact and law on the basis of the evidence available at the rehearing.

Date: 25 November 1997 (signed) Mr. E. Jacobs

Deputy Commissioner

Appendix 1

The definition of Prescribed Disease No. A11 (vibration white finger)

Episodic blanching, occurring throughout the year, affecting the middle or proximal phalanges or in the case of a thumb the proximal phalanx, of––

(a) in the case of a person with 5 fingers (including thumbs) on one hand, any 3 of those fingers, or

(b) in the case of a person with only 4 such fingers, any 2 of those fingers, or

(c) in the case of a person with less than 4 such fingers, any one of those fingers or, as the case may be, the one remaining finger.

(Schedule 1 to the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985.)

Appendix 2

The Taylor Pelmear Scale

Stage 0 No symptoms.

Stage 0_T Intermittent tingling, but no interference with work, domestic or social activities.

Stage 0_N Intermittent numbness, but no interference with work, domestic or social activities.

Stage 0_T/0_N Intermittent tingling and numbness, but no interference with work, domestic or social activities.

Stage 1 Blanching during winter of one or more finger-tips without any interference with work, domestic or social activities.

Stage 2 Blanching during winter characterised by increased frequency and number of fingers affected, usually triggered by cold. The blanching area extends beyond the finger-tips to the mid-phalangeal joints and often to the base of the fingers. There is slight interference with domestic and social activities but not with work.

Stage 3 Extensive blanching with frequent episodes in summer as well as in winter. There is definite interference with work, domestic and social activities.

Stage 4 Extensive blanching affecting all digits in summer as well as in winter, leading to a change of occupation.

Appendix 3

The Stockholm Scales

1. Vascular Component

STAGE GRADE DESCRIPTION

0 No attacks.

1 Mild Occasional attacks affecting only the tips of one or more fingers.

2 Moderate Occasional attacks affecting distal and middle (rarely also proximal) phalanges of one or more fingers.

3 Severe Frequent attacks affecting all phalanges of most fingers.

4 Very severe As in stage 3, with tropic changes in the finger tips.

2. Neurological Component

STAGE DESCRIPTION

0SN Vibration-exposed but no symptoms.

1SN Intermittent numbness with or without tingling.

2SN Intermittent or persistent numbness, reduced sensory perception.

3SN Intermittent or persistent numbness, reduced tactile discrimination and/or manipulative dexterity.

Example:

3R(4)/2L(1) means that, on the vascular scale, the right hand is at stage 3 with 4 digits affected, while the left hand is at stage 2 with 1 digit affected.